It is incontestable that principle of the rule of law is in force in democracies. The state of law is based on the principle of the rule of law. European Court of Human Rights, in the case of Silver and others v. United Kingdom dated 1983, highlighted that the principle of the rule of law is a fundamental one. The state of law is the one which is based on the principle of the rule of law and acts in accordance with law and depends on law in its actions and applications. There is a necessary, inter alia, for independent and impartial judiciary to accomplish this principle. Obviously the law, which should be in force in the state of law, is the humanitarian law.
Judicial power controls depending on law and acting in accordance with law.
Judicial power should do judicial control not political one.
Judicial power cannot do political control. Its control is the one, which is limited with law. Judicial institution cannot intervene to politicians’ right of discretionary power as long as it is suitable to law. Judicial power can control authorities of legislation just in accordance with the principle of the rule of law, subsequently; within this regard (being suitable to law or not).
Judicial institutions are not political institutions, so; they cannot make decisions with state, official, founding and any other similar ideologies. Mentioning independency but also distributing justice suitable to humanitarian law is not possible for the judicial institutions that express themselves in such kinds of ideological and political preferences.
Expectancy of making fair decision from dependent and partial judiciary is not realistic.
It is incontestable that the Constitutional Court’s the decision of Cancellation exceeds formal investigation, which is stated in provisions of the article 148 of the Constitution, but its content (basis) was investigated with interpretation. By this way, it is understood that there is a process to determine the content of legislative organ’s action, regarding with the Constitutional changes. It is also obvious that the situation is contrary to the principle of division of powers and intervention to the legislative organ’s monopoly of making law, subsequently; to the popular sovereignty. Technically it can be said; the Court’s decision is a power exceeding. It is, probably, early to make comment in terms of its content and outcomes. However; it is also understood that the subject is dealt with from perspective of protection of regime not protection of individual freedoms.
Various groups, in terms of political preferences, may be pleased with the decision. They may say “the decision might be contrary to the principles of the law but its outcomes are good”. This manner of thought, as well, cannot be accepted.
Perceiving judiciary as a means of attempts, which may be interpreted as ideological and political preference cannot be accepted, no matter which ideological and political preference the judiciary has. It is a definite principle. Although the decision is suitable to ideological and political preferences of each of us, we cannot approve the judiciary’s such kinds of preferences in terms of the principles of human rights and freedoms, democracy and the rule of law. This attitude is too much pragmatist, opportunist, partial and unprincipled.
Therefore it should be accepted that the independent and impartial judiciary constitutes assurance for everyone in terms of protection of human rights.
The judiciary be supporter neither of the state ideology nor any kinds of ideology, and governments, ruling parties as well as any other opinions and organizations.
The judiciary should be independent and impartial. It should be fair. It should accomplish the principle of the rule of law. It should protect human rights and freedoms. The judiciary should be able to contribute, via its decisions, to the development of the law in Turkey.
Hüsnü Öndül
President